European Union Bill

Lord Wallace of Saltaire Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Bowness]

My Lords, I should hate to delay the Committee, bearing in mind that this clause stand part debate has been introduced so briefly. I have not spoken in these proceedings since Second Reading when I expressed my concern about certain aspects of the Bill, which I have to say remains. As chairman of the Justice and Institutions Sub-Committee of the European Committee—although I am not speaking for the sub-committee—I am concerned as to the effect that the provisions will have on matters relating to judicial and police co-operation. I fear that our ability to act flexibly will be compromised.

I have a question for my noble friends on the Front Bench, of which I have given notice to my noble friend Lord Wallace of Saltaire. This sub-committee has just had before it a proposal for a Council regulation under Article 352, the subject of this clause. It is about a matter as mundane as the publication of the Official Journal, which noble Lords will know is the source of the authentic versions of EU legislation and other documents. At the moment, Article 297 provides that the authentic version is the published and printed version. The proposal for this regulation is that the electronic version should become the authentic version.

I am advised that if this regulation does not become law before the passing of this Bill—if that is what should happen—an Act of the United Kingdom Parliament will be required to implement it. I have read very carefully Clause 8 and the various proposals and clauses with which this clause would comply. One such is the Act of Parliament and the other is if it is a matter of urgency, which would probably be stretching a point—my noble friends would be accused of stretching a point if they were to say that—or an exempt purpose. I do not read it as an exempt purpose, although I am open to be corrected. Do we really propose to have an Act of Parliament to implement matters as mundane as this?

[Lord Wallace of Saltaire]

My Lords, those of us who have been around the European communities are familiar with all the problems of Article 352 in its previous formations—Article 308 and even Article 235. It was the competence creep article that the forebears of the noble Lord, Lord Pearson of Rannoch, complained of many years ago. The ECJ and this article were the basic problems of the competence creep about which they so often complained, which is why Clause 8 is in the Bill.

On the specific question asked by my noble friend Lord Bowness, it is not yet clear whether the process of Article 352 will be used to switch the Official Journal from written to only electronic form. But if it were used, both in the German Bundestag and the British Parliament, there would have to be parliamentary approval. As noble Lords will know, when the clause says an Act of Parliament, it may be a clause within another Act of Parliament but it would have to be subject to parliamentary approval. This is a hard, technical case and I suspect that when it comes to it, other means will be found of approving this measure than Article 352.

Article 352 will now be used a great deal less often than its predecessors, again because the Lisbon treaty provides in so much more detail for so many other competences which the EU now has. Although during the period 2004-09, the predecessors to Article 352 were used a good many times, most of the purposes for which it was used during that period would now be covered by specific articles in the treaty. I hope that I have satisfied noble Lords with that.

[Lord Liddle]

Whatever the specifics of the point raised by the noble Lord, Lord Bowness, does it not illustrate the need to include in this clause some equivalent of the significance test provided in Clause 6? I wonder whether, in the spirit of co-operation and willingness to consider things in a flexible way, the Government might take away and consider—for all of these later clauses that require an Act of Parliament rather than a referendum—some flexibility that would allow a significance test to be applied by a Minister. That would require a lower level of parliamentary approval in cases where we are dealing with technicalities rather than important issues of policy.

[Lord Wallace of Saltaire]

Of course we will reflect on that, but I remind noble Lords that the purpose of this Act is to improve parliamentary scrutiny and oversight of the procedures of the EU.

[Lord Stoddart of Swindon]

Did I understand the noble Lord correctly when he said that the proposal is that the Official Journal of the European Union should only be published online? If so, that is quite a serious proposal because not everyone has online access.

--- Later in debate ---

[Lord Kerr of Kinlochard]

Clause 9(4), second line: “or otherwise support”.

[Lord Wallace of Saltaire]

Noted.

[Lord Pearson of Rannoch]

My Lords, the question of whether this clause should stand part of the Bill gives us an opportunity to keep up to date with the Government’s present intentions regarding Article 3 of Protocol 21 of the Lisbon treaty. Perhaps I may remind the Government of their great leader’s statement made in late 2009:

“We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.

That is from the Prime Minister before he became so. The other quote I give the Government in probing this matter is from Mr David Lidington, made on 20 January this year:

“The UK has until 31 May 2014 to choose whether to accept the application of the Commission’s infringement powers and jurisdiction of the ECJ over this body of instruments or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December 2014”.

More importantly—this is what I want to check up on—Mr Lidington went on to say that:

“Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt-out”.

As I understand it, the provision in Protocol 21 allows the Government to opt out entirely from the whole justice and home affairs proceedings in Lisbon. It is true that if they accept an amendment to any of those provisions in the mean time, that provision then stands. Further, if in the mean time they opt in to anything, the 2014 deadline might not apply. I hope that your Lordships will feel it is helpful if the Government bring us up to date on how their decision is moving on opting out of the whole of the JHA provision. The last time I raised the matter was in Oral Questions, when I was told from the Front Bench by the noble Lord, Lord McNally, that this was all very difficult and sensitive and that the Government had not made up their mind. Have they made any progress?

[Lord Triesman]

My Lords, I shall not repeat the speech of the noble Lord, Lord Kerr, because it would have gone by so fast that what I have to say would not register.

We understand that, broadly speaking, the Government have up till now opted in rather than opted out of the arrangements made under this clause. Is there anything that they identify on the horizon which might lead them in the opposite direction to that which they have taken thus far?

[Lord Wallace of Saltaire]

My Lords, I have just spent the weekend in a part of France, the Dordogne, where English seemed to be spoken rather more often than French. I am conscious that the national interest in terms of co-operation in matters of civil and criminal law is a complex area given that there are now nearly 2 million British citizens living in other states of the European Union—in Spain, France, Portugal, Cyprus and elsewhere. I have to say in answer to the noble Lord, Lord Pearson of Rannoch, that we have not yet come to the point where we must take a final decision on opt-in and opt-out. I have say to the noble Lord, Lord Triesman, that Her Majesty's Government have opted in to the majority of measures which have come up since the last election, but perhaps I may quote holy writ, otherwise known as the coalition agreement, which states:

“We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system”.

That is what we are doing.

Clause 9 deals in particular with the use of three passerelles specific to the area of justice and home affairs. These are in addition to the Government’s recent commitments to enhance current parliamentary scrutiny arrangements on the use of JHA Title V opt-in and Schengen opt-out decisions following the Written Ministerial Statement of my noble friend Lord Howell and that of the Minister for Europe on 20 January this year. As your Lordships' House will be aware, the details are subject to continuing discussions between Parliament and the Government, which is part of our commitment to enhancing parliamentary control over three key EU decisions.

I remind your Lordships that the passerelles are: Article 81(3) of the TFEU, which permits measures concerning family law with cross-border implications to be subject to the ordinary legislative procedure and therefore qualified majority voting; Article 82(2)(d) of the TFEU, which enables the Council to add to the list of criminal law procedures that can be subject to subsequent EU legislation under the ordinary legislative procedure; and Article 83(1) of the TFEU, which allows for additions to the list of criminal offences and sanctions in the areas of serious cross-border crime on which the EU can set minimum standards. These are considered to be sufficiently serious and significant moves for this clause to stand part.

The parliamentary approval process for the three passerelles comprises two stages rather than one. This reflects the operation of our opt-in protocol on the area of freedom, security and justice annexed to the treaties and, more specifically, the arrangements governing our opt-in. It requires two decisions to be taken: first, the initial opt-in to negotiations and, secondly, the adoption of the final negotiated measure. Clause 9 affords Parliament control over both these decisions by requiring a positive vote in both Houses to approve the Government’s proposal to opt in to the negotiation, and then parliamentary approval through primary legislation once the UK has opted into the negotiation and that negotiation is complete.

Having said that, the clause helps to fulfil pledges made in the The Coalition: Our Programme for Government, in that the use of any passerelle clause will be subject to approval through an Act of Parliament and represents an enhanced level of control afforded to Parliament. Having reassured the Committee on that, I hope that it will accept that this clause stand part of the Bill.

[Lord Pearson of Rannoch]

My Lords, will the Minister clarify something? I think he said that the Government are opting into some of these things as we go along. Will those opt-ins eventually be subject to parliamentary approval, or maybe when we come to the end of May 2014 there will not be much left to opt into because it has all been done? In that case, what would be the force of a vote in both Houses of Parliament?

[Lord Wallace of Saltaire]

My Lords, I am sure that the noble Lord reads all the reports that come from the parliamentary scrutiny committees of both Houses, which I assure him follow these questions very closely and which are reported to both Houses.

Clause 9 agreed.

--- Later in debate ---

[Baroness Williams of Crosby]

My Lords, my point is even briefer. Can the Minister give a little explanation of the Motion being “without amendment”? For example, if there were to be a relatively small, technical amendment, would it in fact mean that parliamentary approval was withheld? Perhaps the Minister could say a little more on that point: why the stress on “without amendment”?

[Lord Wallace of Saltaire]

My Lords, perhaps I may start by answering the noble Baroness, Lady Williams. If I am correct—I am not an expert on parliamentary procedure—I think that on SIs we have to approve a Motion without amendment. I will take advice and write to her on that subject but I do not think it is a major issue.

Clause 10 is a proposal for light-touch parliamentary scrutiny of decisions taken in the European Union. The requirement for each House to pass a Motion is either an invitation for each House to accept that this is not significant, or so clearly in Britain's national interest that we should let it go by, or it is an invitation for the scrutiny committees to pay some attention and then bring a Motion to each House.

On the question of proposals for judges and Advocates-General, these matters have been covered by an excellent report from the House of Lords Scrutiny Committee, to which Her Majesty's Government will reply in good time. We do not see that this in any sense provides a greater obstacle to a decision one way or another; it merely underlines the desirability of Parliament being aware of what is happening and being required to say either, “Yes, this is fine”, or, “We’re not entirely sure and we require an explanation on each of these various administrative and other issues”.

Having I hope reassured the House on that, I hope that the House will accept that Clause 10 should stand part.

Clause 10 agreed.

--- Later in debate ---

[Lord Triesman]

My Lords, anybody who looks at the difficulties that have been experienced in many mature economies, whether or not they are in the euro, will recognise that the financial problems created by property speculation and, in particular, by funding sub-prime derivatives in the property market have nothing whatever to do with the euro in most cases. It was a wave of mad speculation—it can only be described as madness—because it was possible to do it under the interest-rate conditions that obtained generally around the world. They are not so varied between countries in either hemisphere.

Of course it is true that in the referenda conducted in the countries that we are discussing, they concluded, as they were perfectly entitled to do, that what was being put in front of them was not good enough. We know, however, in part from the noble Lord, Lord Empey, in terms of the role of the Commissioner in Ireland, and the issues that came up in Denmark on whether the people would be compelled into defence propositions that they did not like, or whether people in Ireland would be compelled to change the abortion law or consider NATO membership, that all of those things produced circumstances in which there was a no vote. Those Governments negotiated again and got those terms changed. Protocols were introduced in almost every incidence to get those terms changed. They then went back and asked the people of their countries whether the changes in terms were sufficient to merit a change in the view that they had taken.

That seems to me to be completely legitimate. I cannot for the life of me understand why someone would say that it is a legitimate outcome if you vote no by, say, 52.5 per cent—that is plainly a no vote; I understand that completely—but when it is put again it is completely illegitimate if something like 65 per cent of the people in that vote say yes. What is the point of a sovereign decision by people when they are asked to take a vote if you do not accept the outcome in either direction—like it or dislike it; it is irrelevant? It is their decision and they have taken it. The idea that any country, least of all this one, should feel that it is bound to be strong-armed into taking a different decision if the first decision does not accord with perhaps the general sentiment in Europe is completely fanciful. It is disrespectful to the people of this country and this debate has been disrespectful to peoples of other countries, too.

[Lord Wallace of Saltaire]

My Lords, this debate has ranged a little wider than the amendment. We have had accusations of the European elite forcing the holding of second referendums. I wondered whether we were going to be told by the noble Lord, Lord Willoughby de Broke, that the European gendarmerie would be used to force second referendums. I recall him previously raising the question of what the European gendarmerie was for. We talked about EU bullying as if somehow Brussels is different and imposes itself on national governments. I simply remind noble Lords that the European Union is an association of states and that Brussels operates on behalf of those member states. It is the member states which agree on proposals of the sort likely to be put to referendums.

On Ireland, I would simply say that the situation may or may not have been to some extent associated with Irish membership of the euro. The situation in Iceland was an even greater financial bubble and can in no sense be blamed on Iceland’s membership of the euro since Iceland is neither a member of the euro nor of the European Union. We need to get away from that. On the question of financing the Irish referendums, I am not aware of how the second referendum was financed beyond the fact that I have three very good friends in Dublin who took out substantial loans on their houses to guarantee the basic funding for a second referendum. When my wife and I had dinner with them some months after the referendum, they were still very heavily in debt. That suggests to me that there were no sugar daddies, let alone external forces, providing funding.

--- Later in debate ---

[Lord Pearson of Rannoch]

My Lords, I am not sure that I heard the noble Lord answer a question put by the noble Lord, Lord Stoddart of Swindon. It may be that the noble Lord would prefer to answer it in a debate on Clause 13 stand part. I am happy to do that, provided that we have a brief debate on it. The question was: would the European Commission, Parliament or whatever be allowed to contribute to any referendum in this country, presumably on the side of the continuing advance of the Brussels juggernaut?

[Lord Wallace of Saltaire]

I am happy to answer that now: perhaps it will enable us to avoid having a debate on Clause 13, which is largely technical. The Political Parties, Elections and Referendums Act makes it entirely clear that there are tight controls on the funding of referendums by political parties and other actors, including those outside the European Union. My understanding of the clause is that the European Commission would not be allowed to spend more than £10,000 in the course of a referendum. I hope that that provides the answer that the noble Lord needs. If any further details are required, I will of course write to him. However, I am sure that he is an expert on PPERA and all the details that the Electoral Commission now oversees.

[Lord Stoddart of Swindon]

I asked about the new rules which would allow European political parties to campaign in any country on referendums. Does the existing legislation cover expenditure by MEPs in any country, including our own, in case of a referendum? We need to know that.

[Lord Wallace of Saltaire]

I seem to remember that in both the Danish and the Irish referendums there was substantial assistance from Eurosceptic groups in this country in terms of finance and people—but perhaps I am wrong about that. Perhaps my memory is at fault. Perhaps we should consider whether there should be an amendment at a later stage to ensure that such British groups are prevented from intervening in other countries’ referendums. I will have to take advice on that and on some other matters.

[Lord Stoddart of Swindon]

I am most obliged to the Minister for giving way again, but the point about MEPs is that they will be able to use their expenses to campaign, and that is taxpayers’ money. If people give voluntarily, that is a matter for them, within the election rules, but if MEPs are spending taxpayers’ money, that is another business. I appreciate that the Minister cannot reply now, but when he considers the matter further he will perhaps take that into consideration.

[Lord Wallace of Saltaire]

I will refer back to the Political Parties, Elections and Referendums Act.

[Lord Willoughby de Broke]

I am grateful to all noble Lords who have spoken, particularly to those noble Lords who supported this amendment, and even for the qualified support of the noble Lord, Lord Flight. I say to him that this is entirely to do with this Bill and is not to do with a Bill on an “in or out” referendum, when it may well be appropriate to shorten the term between referendums. However, that is a matter for another day and is certainly not part of this debate, which has ranged a little more widely than I wished. I pick up what the noble Lord, Lord Triesman, said. I certainly did not insult anybody. I was simply quoting what some of the European elite said about their own electorates. They were the people who were insulting them, not me. For the moment, I beg leave to withdraw the amendment, but I will probably bring it back on Report.